This is not the first time that Manhattan prosecutors have brought criminal cases against a construction company related to job site safety where an injury or death occurred. However, it is seemingly the first where a conviction was obtained. While Harco’s attorneys have signaled that they intend to appeal the conviction, the conviction alone may have an impact on companies and how they do business.

It is fair to say the construction industry is well aware of the conviction and the construction task force set up by the Manhattan District Attorney’s office, led by Diana Florence. Although the task force investigates more traditional criminal conduct in the construction field such as bribery and fraud, it seems to have a particular focus on safety and prosecutions borne out of a jobsite injury or death. Certainly, this will translate into an increase in criminal investigations and prosecutions for this type of event. Previous criminal construction-related prosecutions involved intentional wrongdoing, and the few cases brought for non-intentional injuries resulted in an acquittal. But there may now be a shift in how the prosecutions are brought, as well as their number.

Staying Vigilant

Although an increase in criminal prosecutions has not yet fully occurred, with the establishment of the task force, there are already similar cases pending and there are sure to be additional prosecutions of this type. Other district attorney offices have also begun to be more involved in this area, including the Kings County District Attorney’s office where one such case for manslaughter is pending.

Industry representatives disagree on the appropriateness or effectiveness of these prosecutions that appear to some to criminalize what were previously thought of as accidents. Regardless, the industry is cautioned by these prosecutions and should take additional care to avoid potential criminal exposure. We would expect to see the model that resulted in the Harco conviction duplicated by prosecutors. As such, companies and individual supervisors should be aware that while not an exhaustive list, it appears that for a criminal prosecution to occur there has to have been:

* An injury or death on or related to a construction site;

* A dangerous condition was known to the company and the site supervisory personnel; and

* The company and the supervisory personnel were warned in some manner of the dangerous condition and yet it was not cured or believed to have been cured for some time prior to the injury or death.

Based upon this prosecutorial conduct, companies would be wise to be extra vigilant to any safety warnings that occur. Sometimes owners and supervisors will be more concerned with what they view as substantial risks, than conduct for which they have been warned. However, in light of these criminal prosecutions the entity and the supervisor must make sure to investigate, remedy and document both the investigation and remedy, if any, in order to attempt to avoid a potential prosecution.

Legal Complications

Part of the difficulty for a company in this area is that construction is inherently dangerous. Additionally, although workers can be instructed on safety and safety gear, they may ignore these warnings and act in a dangerous manner due to no fault of the owner or entity. It has been suggested to me by a number of owners that if, for example, OSHA was to write citations to employees rather than the entity, the employees would very quickly follow the safety rules that the employers try to stress. Further, this legal field is developing and the line between an accident due to negligent conduct and one due to criminal behavior is not a well established. This all complicates the situation for a construction employer already facing a myriad of regulations.

Adding to the employers’ difficulties is the public rhetoric that has been advanced by some that construction has gotten more dangerous in recent years with the NYC construction boom. When I was first asked about this by a news service, I indicated I did not believe that to be the case. The recent statistics have shown that while, yes, there are more injuries in 2015 then there were in 2014, the amount of construction that is occurring has risen in kind. The amount of construction from 2014 to 2015 has more than doubled for square feet of new construction. During this same period injuries have increased by almost the exact same percentage. Many articles have cited a statistic that since 2011 construction injuries have more than tripled, but neglect to point out that the amount of construction has as well. Indeed, the larger, more well funded projects of the type occurring in Manhattan during this construction boom, would be expected to have less injuries. It may be that construction has not gotten more dangerous, there is just more of it in the City.

Regardless, injuries have increased, and employers and supervisors must do everything they can to keep their workers safe. This includes listening extra carefully to any safety complaints no matter where they originate, and to be innovative where they can. One owner informed me that he buys lunch for an entire job crew each Friday when there have been no safety violations in the prior week. Since institution of this policy, he has noticed the workers more closely following his prescribed safety rules. Safety has always been a moral concern and good for business – no construction company wants a site interrupted or shut due to injury. But now it is also a matter of self-preservation for the company and its supervisory people.

Brian L. Gardner is chairman of the construction services department at Cole Schotz P.C., a national law firm with offices in New York, New Jersey, Delaware, Maryland and Texas. He is a former federal prosecutor now engaged in a complex civil and criminal litigation practice, including commercial, construction, regulatory, environmental and white collar litigation.